dismissed EB-2 NIW Case: Sports And Exercise Physiology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 27, 2024 In Re: 34848831 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Exceptional Ability) 
The Petitioner, a sports and exercise physiologist, seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, as well as a national interest waiver of the job offer requirement 
attached to this classification. See Immigration and Nationality Act (the Act) section 203(b )(2), 
8 U.S.C. § l 153(b)(2). The Director of the Texas Service Center denied the petition, concluding that 
although the record established the Petitioner's qualification as a member of the professions holding 
an advanced degree, it did not establish that a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. The matter is now before us on appeal pursuant to 8 
C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. If a petitioner establishes eligibility for the underlying EB-2 classification, 
they must then demonstrate that they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent 
regulations define the term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 
2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states 
that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national 
interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Matter ofDhanasar, 26 T&N Dec. at 889. 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. 2 The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus a labor certification, would be in the national interest. 
The Petitioner's proposed endeavor, as described in the personal statement submitted with his petition, 
is to "perform as a Sports and Exercise Physiologist and provide his specialized services in Health 
Promotion and Rehabilitation and Sports and Strength Training to impact the field of health and 
exercise physiology through innovation in the United States;" to "innovate the field of exercise 
physiology through the implementation of scientific preparation of physical conditioning and 
rehabilitation programs, accurate diagnosis of clients' needs and conditions, and assistance to 
individuals with special conditions." The Petitioner further states that in service of his goal to promote 
health and rehabilitation he will "design and implement exercise programs," "apply stress tests and 
other evaluation tools," and "develop individualized exercise prescriptions." The Petitioner also 
indicates that he will provide personal training services and will work with amateur and professional 
athletes to boost their performance. In a professional plan submitted with his response to the Director's 
request for evidence (RFE), the Petitioner further indicated that he would also "provide training on 
themes related to how to prevent and treat chronical [sic] diseases through the implementation of 
advanced training methodologies." 
In denying the petition, the Director concluded that the Petitioner had not demonstrated the substantial 
merit and the national importance of the proposed endeavor, that he was well positioned to advance 
the proposed endeavor, and that on balance, waiving the job offer requirement would benefit the 
United States. The Director therefore determined that the Petitioner had not shown his eligibility for 
a national interest waiver as a matter of discretion. 
On appeal, the Petitioner argues that the record before the Director establishes that his proposed 
endeavor has both substantial merit and national importance, that he is well positioned to advance his 
proposed endeavor, and that, on balance, waiving the job offer requirement would benefit the United 
States. The Petitioner further contends that he has demonstrated that USCIS should grant him a 
national interest waiver has a matter of discretion. 
To establish eligibility for a national interest waiver under the first prong of the Dhanasar framework, 
the Petitioner must establish that his proposed endeavor has both substantial merit and national 
importance. For the reasons discussed below we conclude that although the Petitioner has shown the 
substantial merit of his proposed endeavor, he has not sufficiently demonstrated its national 
importance under the first prong of the Dhanasar analytical framework. 
2 The Director therefore did not reach the matter of whether the Petitioner established his eligibility for EB-2 classification 
as an individual of exceptional ability. 
2 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, 
health, or education. 
A. Substantial Merit 
The record reflects that there are national initiatives, such as the Centers for Disease Control and 
Prevention's (CDC) Active People, Healthy Nation program, and the Exercise is Medicine initiative 
managed by the American College of Sports Medicine, demonstrating the importance of physical 
exercise in improving health outcomes. The record is therefore sufficient to show, by a preponderance 
of the evidence, that the Petitioner's proposed endeavor, as outlined in his business plan and personal 
statement, has substantial merit. We will withdraw the Director's determination to the contrary. 
B. National Importance 
The Petitioner asserts on appeal that the Director erred in concluding 
that the proposed endeavor was 
not of national importance. In determining whether the proposed endeavor has national importance, 
we consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889. InDhanasar, we further 
noted that "we look for broader implications" of the proposed endeavor and that "[ a ]n undertaking 
may have national importance for example, because it has national or even global implications within 
a particular field." Dhanasar, 26 I&N Dec. at 889. We determined in Dhanasar that the petitioner's 
teaching activities did not rise to the level of having national importance because they would not 
impact his field more broadly. Id. at 893. We also stated that "[a]n endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area, for instance, may well be understood to have national importance." Id. 
at 890. 
The Petitioner contends on appeal that the national importance of his proposed endeavor is 
demonstrated by its focus on "improving health outcomes and preventing chronic diseases," which 
aligns with national initiatives such as the aforementioned CDC initiative and the Obama 
Administration's "Let's Move!" initiative. 3 While both initiatives indicate the importance of increased 
physical exercise for the reduction of chronic illness, they focus on assisting communities to implement 
strategies that will increase exercise and provide support for childhood nutrition. They do not 
specifically show the government's interest in the Petitioner's proposed endeavor or similar endeavors. 
In evaluating national importance under the first prong of the Dhanasar framework, we will consider 
evidence demonstrating how a specific proposed endeavor impacts a matter that a government entity 
has described as having national importance or a matter that is the subject of national initiatives. 
However, pursuing employment in an area that is adjacent to the subject of national initiatives is not 
sufficient, in and of itself: to establish the national importance of a specific endeavor. The Petitioner 
must still demonstrate the potential prospective impact of his specific proposed endeavor in that area. 
3 It is unclear from the record whether the Let's Move initiative is still active. 
3 
In addition, the Petitioner argues on appeal that the national importance of his proposed endeavor is 
shown through its positive economic impacts. With his initial petition, the Petitioner included a 
personal statement indicating that his proposed endeavor would help to reduce healthcare costs 
"related to low physical activity" and medical expenses "related to obesity" and would "generate 
economic growth and contribute toward increasing and optimizing the U.S. market." The Petitioner 
then provided a business plan for Iwith his response to the Director's RFE in 
which he explained that he has established I lPA and has invested 
$50,000 into the endeavor. 4 According to this business plan, the focus of his proposed endeavor would 
be the expansion of this business into I I and New Jersey ... not only providing high­
standard health services but also contributing to local and national employment rates." The business 
plan anticipates that the proposed endeavor would employ 6 people in 2025, 10 in 2026, 13 in 2027, 
and 16 in 2028, and 20 in 2029; it also anticipated that the proposed endeavor would generate revenues 
totaling $265,000 in 2025, $720,000 in 2026, $870,000 in 2027, $2,000,000 in 2028, and $3,600,000 
in 2029. Here, the Petitioner has not offered evidence to demonstrate that his company's future 
staffing levels or revenues stand to provide substantial economic benefits in I I PA and
I PA, and in New Jersey. While the projected jobs and revenues forecast for the proposed 
endeavor indicate that the company has growth potential, it does not demonstrate that benefits to the 
regional or national economy resulting from the Petitioner's undertaking would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Matter ofDhanasar, 26 I&N Dec. 
at 890. 
The Petitioner also argues that his expansion plan for the proposed endeavor "which includes opening 
new facilities across key locations in the United States ... stimulates local economies and job markets." 
The business plan similarly indicates that the Petitioner's strategy is "to establish new fitness centers 
every three years" and that [t]he decision to provide accessible fitness services in economically 
disadvantaged areas will particularly serve as a catalyst for economic revitalization." In Dhanasar 
we stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area, for instance, 
may well be understood to have national importance." Id. However, the Petitioner does not offer 
evidence to demonstrate that the areas ofl lor New Jersey in which the proposed 
endeavor intends to operate are economically disadvantaged areas. Further, he has not provided 
evidence demonstrating that his proposed business activities would operate on such a scale as to rise to 
a level of national importance. It is insufficient to claim an endeavor has national importance or would 
create a broad impact without providing evidence to substantiate such claims. While any basic 
economic activity has the potential to positively affect the economy to some degree, the Petitioner has 
not demonstrated how the potential prospective impact of his proposed endeavor stands to offer 
broader implications in his industry or to generate substantial positive economic effects in the United 
States as a whole. 
The Petitioner asserts that the national importance of the proposed endeavor is shown in its "profound" 
societal benefits. He points to his "commitment to inclusivity and accessibility in fitness programs" 
and his integration of "mental health considerations into physical fitness regimes" in support of this 
assertion. We acknowledge the Petitioner's arguments regarding the importance of providing 
inclusive and accessible physical fitness programs. However, the Petitioner has not submitted 
4 We note that the record lacks business formation document s for this business or evidence of this investment. 
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sufficient evidence to demonstrate how his proposed endeavor's impact would extend beyond his 
workplace and clients to the broader field of sports and exercise physiology. 
The Petitioner also contends that the proposed endeavor's national importance is shown through its 
"power to enhance military operational efficiency and support national defense preparedness ." 
However the record lacks sufficient evidence to support this contention. The Petitioner notes that 
correspondence in the record from a U.S. Army veteran endorsing him "underscores the tangible 
benefits of his specialized fitness programs within critical sectors such as military readiness." We 
note, however, that this letter generally highlights the Petitioner's skills and professional knowledge 
and the benefits that the author derived from them. The Petitioner's knowledge, skills, education, and 
experience are considerations under Dhanasar's second prong, which "shifts the focus from the 
proposed endeavor to the foreign national." Matter of Dhanasar, 26 I&N Dec. at 890. The issue 
under the first prong is whether the Petitioner has demonstrated the national importance of her 
proposed work. Moreover, as stated above, the record lacks evidence sufficient to demonstrate how 
his proposed endeavor would extend beyond his clients and business to the broader field of sports and 
exercise physiology. 
In summary, although the Petitioner has established the substantial merit of the proposed endeavor, he 
has not demonstrated its national importance. The Petitioner has therefore not met the requisite first 
prong of the Dhanasar analytical framework. As the Petitioner has not met this requisite first prong, 
we conclude that he has not provided adequate reasons or evidence on appeal to overcome the 
Director's determination that he is eligible for a national interest waiver as a matter of discretion. 
Since this basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve the issue concerning his eligibility under the second and third prongs of the Dhanasar 
framework. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (stating that agencies are not required to 
make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also 
Matter of D-L-S-, 28 I&N Dec. 568, 576- 77 n.10 (BIA 2022) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The documentation in the record does not establish the national importance of the Petitioner's proposed 
endeavor as required by the first prong of the Dhanasar precedent decision. As the Petitioner has not met 
the requisite first prong of the Dhanasar analytical framework, we conclude that he has not established 
he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal 
will be dismissed for the above stated reasons, with each considered as an independent and alternate 
basis for the decision. 
ORDER: The appeal is dismissed. 
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